Iowa court overturns abuse verdict, citing photos

September 20, 2012

IOWA CITY - An appeals court overturned the conviction Wednesday of an Iowa man who has served 7 years in prison on charges that he sexually abused his daughter, saying jurors were shown irrelevant but prejudicial police photographs that unfairly painted him as a creep.

The Iowa Court of Appeals ruled 3-0 that it had lost confidence in the conviction of Gerry T. Jacobsen, who is serving a 25-year prison term after he was found guilty on three counts of second-degree sexual abuse and three counts of indecent contact. The court, which upheld his conviction on appeal in 2006, ordered a new trial for Jacobsen in which he can again assert his innocence.

"I'm very, very pleased for Gerry and his family," said his lawyer, Clemens Erdahl. "It's just been a long haul. It takes a lot of patience and perseverance to get these things turned around."

Prosecutors had no immediate comment on whether they planned to appeal to the Iowa Supreme Court, seek a new trial or drop the case. Erdahl said he would advise his client, who is being housed at the Anamosa State Penitentiary, to wait for prosecutors to signal their intentions before seeking his release on bond pending further proceedings.

Jacobsen, now 45, was convicted on charges alleging that he inappropriately touched his daughter in her bed when she was five or six in the 1990s. The girl made the allegations years later, after she turned 11, and changed her story repeatedly, the court noted. She once recanted the allegations before renewing them, and at other times said the abuse happened nightly or just once. There was no physical evidence, and girl's mother also asked leading questions that could have tainted her memory and description, judges wrote.

"The evidence in this case is far from overwhelming," Chief Judge Larry Eisenhauer wrote for the panel.

The verdict in Black Hawk County came after an initial mistrial in which jurors deadlocked but a majority wanted to acquit Jacobsen, court records show.

At issue in Wednesday's decision were photographs that investigators took at Jacobsen's home in Tama County in 2004 - which was not where he lived when the alleged abuse occurred years earlier. Ten photographs were shown to jurors that were taken to illustrate how Jacobsen could have spied on his daughter in the bathroom or her bedroom - despite no evidence that actually happened.

In fact, a deputy removed a screw holding the crack in the door closed so the bathroom could then be seen through the crack. The deputy also removed the cover from the heating vent to show how it could be used to look into the bathroom. Another picture of a room with a computer attempted to show how its door could be opened to peek into his daughter's bedroom.

"There was never any indication that he ever had peeked through there, but it was there, and it was an option for him, or someone, to peek through; that is why the photograph was taken," the deputy testified of the vent photos.

Last year, a judge rejected Jacobsen's claim that the photos were improperly admitted, saying they showed "proof of motive" and planning, and that any objection would have been overruled. But the appeals court said Jacobsen's trial attorney should have objected because the photos were irrelevant and didn't prove anything.

"Given the probable prejudicial effect of the photos, painting Jacobsen as a creepy, peeping Tom, years after he allegedly sexually abused his daughter, our confidence in the outcome is undermined," Eisenhauer wrote.

In his initial appeal in 2006, the appeals court was not asked to review whether the photographs should have been admitted. Instead, the court rejected Jacobsen's argument that his trial was tainted in other ways.

His attorney submitted testimony showing three jurors initially wanted to acquit Jacobsen but claimed they were coerced by other jurors into supporting a guilty verdict. The court said that evidence was inadmissible since it related to internal jury deliberations.